[Ip-health] Compulsory licence debate comes to the Philippines

[James Packard Love]

http://www.managingip.com/?ISS=23713&PUBID=34&Page=10&SID=682672&TYPE=20

Compulsory licence debate comes to the Philippines
Hechanova Bugay & Vilchez, Manila

Pending before the Philippine Congress and certified as urgent by
President Gloria Macapagal Arroyo are two bills or proposed laws:
House Bill No. 6035 and Senate Bill No. 2263. Both have the objective
of providing cheaper medicines, and are expected to be approved in
the coming session of the Congress in June 2007. One common subject
matter tackled in these bills is the amendment of Section 74 of the
Intellectual Property Code (IP Code, RA 8293) referring to compulsory
licensing of a patented invention by the government. Under RA 8293,
the use by the government or a third person authorized by the
government may be done without the agreement of the patent owner in
two instances. First, if there is a public interest requirement, or
secondly, if a judicial or administrative body has determined that
the exploitation by the patent owner is anti-competitive, but subject
to compulsory licensing. The terms and conditions of the licence are
determined by the Bureau of Legal Affairs of the Intellectual
Property Office in an action for compulsory licensing.

HB 6035 seeks to introduce a new chapter into the IP Code with the
title Non-Patentable Inventions, Parallel Importation, Early Working
Provisions, and Government Use of Drugs or Medicines. The salient
points of this new chapter are:

To allow the government or a third person authorized by the
government, without the agreement of the patent owner, to exploit the
invention of a drug or medicine in cases of national emergency or
other circumstances of extreme urgency, or where there is public non-
commercial use of the patent by the patentee without a satisfactory
reason.

The control, supervision and determination of the use or exploitation
of the invention is lodged with the Secretaries of the Department of
Health and Department of Trade and Industry, which means the
requirement for the filing of an action for compulsory licensing is
done away with.

The determination of the Secretaries of the Department of Health and
Department of Trade and Industry is immediately executory and is not
subject to any temporary restraining order or preliminary injunction
or other provisional remedies that will prevent the implementation of
the decision.

In the case of SB 2263, by simply notifying the patent holder within
a reasonable period, in situations of national emergency or other
circumstance of extreme urgency, public non-commercial use, the use
or other exploitation of drugs or medicines by the government or
third person authorized by the government shall be subject to the
exclusive determination of the president of the Republic of the
Philippines and shall be immediately executory, and can only be
restrained or enjoined by the Supreme Court.

In both HB 6035 and SB 2263, the requirement for the filing of an
action for compulsory licensing has been eliminated, the
determination of the government to use or exploit the invention or
drug is immediately executory and cannot be subject to a temporary
restraining order, preliminary injunction and other provisional
remedies, and instead notices to the patent holders shall apply, to
enable the government to deliver cheaper medicines or drugs in public
health emergency situations.
Editha R Hechanova

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James Packard Love
Knowledge Ecology International
mailto:james.love@keionline.org
tel. +1.202.332.2670 / U.S. mobile+1.202.361.3040, Geneva mobile
+41.76.413.6584

"If everyone thinks the same: No one thinks." Bill Walton"